Need for a Lawyer in Surrogacy

The reasons are so true and so many. Every Intended Parent and Surrogate is in need of an Independent Advocate who can take care of her interest. The Indian Scenario is such that the hospitals or the medical tourism agencies teams up with a lawyer who just takes care of the form filling process.

It is true that Surrogacy in India has got specific laws. The only law on which the foundation of surrogacy leans is the Law of Contracts, as the surrogacy itself is a contractual arrangement. But it goes without saying that the general laws are applicable to surrogacy as well. This means that the contract should be totally in conformity with the law of the land and it should India Specific. Mere downloading of the simple forms which has got no relevance in the Indian Legal System and signing the same is of no use. It requires expertise in legal drafting to make specific contracts for situation specific positions.

You wouldn’t need us if you possess knowledge with regard to following:

Are you aware there are no laws for surrogacy in India?

Where there is a law, you can be cautious to follow the law; where there is no law, you need to be extremely vigilant so that your actions today are not held to be wrong on a later date. If you are caught in a legal tangle of such nature, your right to the child becomes a question mark.

Are you aware of your rights and liabilities as per the general laws in India?

For example, Section 112 of the Indian Evidence Act, 1883 gives a conclusive presumption that the husband of the mother of the child is the father of the child.

How will you be able to avoid this provision if any question arises regarding the paternity on a later date? Remember, there is no special law for surrogacy in India and the contract you are entering now should not be bad in the present existing laws in India.

Does the Surrogate mother know about the agreement she is entering into and about the terms and conditions contained therein?

As far as the Indian laws with regard to surrogacy are concerned, it is only the Law of Contracts which governs the whole surrogacy. For any agreement to be valid and enforceable in the eyes of law, the parties to the agreement must understand all the particulars contained in the contract and then only they can sign the contract. Where the surrogate is not aware of what she is signing, it is you and your baby who will be caught in the mess.

The agreement should contain all the particulars in the language known to her and the terms clearly explained to her. Where the Surrogate does not know the particulars of the agreement she is entering into, there are possibilities that she can assert on a later date that she was exploited. Such cases turn into an ugly scene where you need to run to the court for the custody of the child instead of enjoying the precious moments with your newborn. So, a thorough legal counselling for the surrogate is very much required before she enters into the agreement,

Is the agreement in the language which she understands? Does the surrogate know to read and write?

The surrogates in India are mostly from the downtrodden part of the society. They are either illiterate or aware of only the local language. Therefore all the contents of the agreements need to be explained to her in her local language, making her completely aware of what she is doing. It should also be seen whether the contract is entered into by the surrogate on her own free will or by some external influence.

Is the agreement you are signing a mere ‘formal form for the sake of procedure’ or is the agreement a statement of your specific intentions protecting your interest?

Remember that entering into a surrogacy agreement gives rise to serious implications and it is not like signing the usual preset forms. What is in question is not only time and money, but a lot of mixed emotions. Any mishap in the procedure would result in total displeasure from the side of the Intended Parents and the Surrogate.

Each Surrogacy agreement is a document which protects the rights of the parties who enter into it. It is the only document which explains the right of the intended parents to the child. Where the surrogacy contract is not perfect, your dreams for your child might continue to stay a dream. There is absolutely no point in merely signing some document where the parties signing to it do not even know what it contains.